Free Speech and Religion

June 09, 1993

A spokesman for what is sometimes disparaged as the "religious right" hailed the Supreme Court decision requiring a New York school board to allow an evangelical group to use school facilities to show movies advancing some of its views. But a spokesman for a group that is sometimes disparaged as the "irreligious left" also hailed the decision. In fact the court's ruling was 9-0, and as is usually true in unanimous decisions it was not a victory for any bloc -- just a victory for common sense and the common good.

The issue, as Justice Byron White explained, was not one of "establishing" religion, which is forbidden by the First Amendment, but of government regulation of free speech, which is also forbidden by the First Amendment.

The case involved a Long Island school district which allowed numerous social and civic groups to use its facilities after school. It refused to grant a small Christian church the same privilege. Since non-religious groups used the school's facilities in precisely the same manner, since the public at large was invited, since the event would occur after school hours and since there was no official approval of the contents of the meeting, there could be "no realistic danger that the community would think the [public school] district was endorsing religion" by agreeing to let the church use the facilities, said the court. Not to allow the group the privilege amounted to government's favoring some forms of speech but not another.

Although the decision was 9-0, three justices criticized the White opinion because it reasserted the court's reliance on the Supreme Court's 1971 test of when a state practice regarding religion is unconstitutional. That test says a practice is unconstitutional if it was instituted for religious purposes or aids religion or "excessively entangles" the state in regulation of a practice. That may not be the best test in the world, but it has worked well for 21 years and should not be abandoned.

The Supreme Court this week also refused to accept a case from Texas involving whether students may decide on their own to XTC have prayer in school. The court said last year that school officials may not take such an initiative. Then a Houston area school district allowed the student initiative. The U.S. Circuit Court of Appeals there approved it. The Supreme Court refused to review the decision. This leaves the ruling intact -- in that circuit only. The Supreme Court probably is biding its time on the question of student decisions on prayer till a group of decisions from several circuits are available to consider.